People ex rel. Ferris Wheel Co. v. Swift , 60 Ill. App. 395 ( 1895 )

Mr. Presiding Justice Gart

delivered the opinion of the Court.

A general ordinance of the city of Chicago—of which the appellee Swift is mayor, and the other appellees city clerk and city collector—provides for the issuing of dramshop licenses upon certain terms.

The relator, complying with those terms, applied for a license. It was refused, and the relator sued out this mandamus to compel the issuing of such license, and being denied that relief in the Circuit Court, has appealed to this.

The question for us is the validity of another ordinance which the appellant attacks upon two grounds: First, that the text of the ordinance makes it void. Second, that it was not properly passed by the common council. We shall only need to consider the first ground. That ordinance provides that in a certain limited district embracing the premises of the relator, no dramshop license shall be granted unless the applicant shall present to the mayor, with the application, “a petition signed by a majority.of the legal voters of that portion of the city ” embraced within that district.

It is conceded by the appellant that the city may prohibit the sale of liquor within defined districts of the city—create prohibition districts. It is not denied by the appellees that a mandamus may issue to compel the issue of a license wrongly refused.

Under the general ordinance any applicant—complying with the terms—is entitled to a license. Under the ordinance attacked, the success of his application depends upon the favor or good will of his neighbors.

In a cosmopolitan city, in which the voting population of considerable districts are of like blood, descent, race, religion, politics, or any other distinguishing trait, they might—if such districts were separated from the city at large by ordinances like the one in question—prevent all competition with those like themselves by signing petitions for those only who were so like.

Clans could monopolize the traffic.

While happily in modern times prejudices and antipathies growing out of religious, political, or other differences, are much mollified, they are not eradicated, and no encouragement by law should create a field for their exercise. Why, ■if the option of license or no license is made dependent upon the favor of a majority of the legal voters, may it not be made dependent upon the favor of a majority of the married women—which probably, in the abstract, has much more to commend it ? The good will of the women might be, in a measure, dependent upon the degree of personal pulchritude of the applicant; of the voters, by their expectation of the liberality with which he would “ chalk it up.” Voters, as such only, have no interest in property within the defined district. Then why should they, more than others, be consulted ? The operation of such ordinances is to make discriminations, and create monopolies; and ordinances of that character are invalid. City of Lake View v. Tate, 33 Ill. App. 78; 130 Ill. 217; City of Chicago v. Stratton, 58 Ill. App. 539.

The judgment of the Circuit Court is reversed and the cause remanded, with directions to the Circuit Court to award a mandamus, as in the petition therefor is prayed.

Mb. Justice Shepard.

I should dissent from the above decision-if it were not that the case of City v. Stratton, supra, wherein I dissented, binds the court, and it is therefore becoming in me to remain silent in subsequent cases where the same doctrine is involved.